July 10, 2020

In its unreported opinion dated July 7, 2020, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) held: “Under the circumstances of this case, the trial court’s decision to preclude the testimony of the expert witness was an appropriate and proportionate sanction for Huff’s [the plaintiff’s] late designation and failure to produce an expert report,” explaining that because “the trial court is primarily responsible for ensuring compliance with scheduling orders and setting sanctions for their violation, we are deferential in our review and will only reverse if the trial court abuses its wide discretion.”

The Underlying Facts

After being involved in a traffic collision that injured her neck, the plaintiff sought treatment from two chiropractors whom the plaintiff alleged caused damage to a spinal cord stimulator that she had previously had implanted in her neck. The plaintiff filed her Maryland medical malpractice lawsuit against the employer of the two chiropractors. The plaintiff timely designated a chiropractic expert pursuant to the scheduling order issued in the case but later learned that the expert could not testify as to the causation element, i.e., that the chiropractic manipulation of the plaintiff’s neck caused harm to the spinal cord stimulator.

The plaintiff filed an amended expert witness designation to add a board-certified neurosurgeon to testify that the chiropractic treatments caused the damage. The defendant employer moved to strike the plaintiff’s neurosurgeon expert because the plaintiff designated the neurosurgery expert almost two months after the deadline for expert designations. The trial court granted the defendant’s motion to strike the plaintiff’s designation of the neurosurgeon as an expert and denied the plaintiff’s motion for leave to amend the scheduling order. As a result, the plaintiff’s neurosurgery expert was not permitted to testify at trial. Without the neurosurgeon’s testimony, the plaintiff was unable to establish a prima facie case for medical malpractice and, at the close of her case, the trial court granted the defendant’s motion for judgment. The plaintiff appealed.

Maryland Appellate Court Opinion

The Maryland Appellate Court stated, “[h]aving found that a discovery violation occurred, the circuit court was required to determine the appropriate sanction. Here, the court decided to preclude the testimony of the late-designated expert witness.” The Maryland Appellate Court explained that before entering such a sanction, trial courts are required to consider the following six factors: whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement, and if so, the overall desirability of a continuance.

The Maryland Appellate Court held in the case it was deciding: “we conclude that all of the [six] factors point toward sanctioning [the plaintiff]. Although we cannot know from the record exactly how the trial court conducted this calculus, we do know that it didn’t abuse its considerable discretion in coming to a similar conclusion.”

Source Huff v. Multi-Specialty Healthcare, LLC, No. 2979 September Term, 2018.

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